Medical Negligence
Medical negligence solicitors in Dublin 2, advising patients and families on claims arising from hospital, surgical, maternity, general practice and diagnostic care, led by Adam McCarthy.
What medical negligence means in Irish law
Not every poor outcome is negligence. Medicine involves risk, and a treatment that fails is not a wrong unless the care fell below the standard the law requires. That standard was set by the Supreme Court in Dunne v National Maternity Hospital in 1989 and confirmed by the same court in Morrissey v Health Service Executive in 2020. A doctor, nurse, hospital or other provider is negligent where they did something, or failed to do something, that no practitioner of the same specialty and skill, acting with ordinary care, would have done. Following a general and approved practice is not negligence unless that practice has defects which should have been obvious, and an honest difference of opinion between practitioners is not negligence at all. The patient must then prove that the failure caused the injury, which in cases of delayed diagnosis in particular is often the harder question.
The kinds of case we advise on
The firm advises on claims arising from delayed or missed diagnosis, including cancer and cardiac cases, from errors in surgery and anaesthesia, from injuries to mothers and babies during pregnancy and birth, from the prescription and administration of medication, from accident and emergency care, from general practice, from dental, orthopaedic and cosmetic treatment, from the care of residents in nursing homes, and from treatment carried out without properly informed consent. We also advise families in fatal cases and at inquests, and patients who have received a disclosure under the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023 and want to understand what it means.
How a claim proceeds
A claim begins with the records, which the patient is entitled to request from the hospital or practitioner, and with an independent expert report from a practitioner in the same field, because the Irish courts require a solicitor to have a reasonable basis in expert opinion before alleging professional negligence. Claims for medical negligence do not go through the Injuries Resolution Board, which has no function in relation to the provision of health services, so proceedings issue directly in the High Court or the Circuit Court after a letter of claim. Claims against public hospitals and the HSE are managed by the State Claims Agency, and claims against consultants and private providers by their indemnifiers. Most claims resolve by negotiation or mediation before trial, but every case is prepared on the basis that it may not. Adam McCarthy has written a fuller account in How a medical negligence claim proceeds in Ireland.
Time limits
A medical negligence claim must generally be brought within two years of the date of the injury or, if later, the date on which the patient knew or ought to have known that the injury was significant and attributable to the treatment. Where the patient is a child the period does not begin until they turn eighteen, and in a fatal case it runs for two years from the death. The limitation period is short, the expert report takes time to obtain and the records take time to arrive, so early advice preserves options that delay closes off.
Costs
In contentious business, including medical negligence claims, section 149 of the Legal Services Regulation Act 2015 prohibits a solicitor from charging fees calculated as a percentage or proportion of any damages recovered, and the firm complies with that prohibition. Before any work begins we provide a written notice of costs under section 150 of the same Act setting out how the firm's fees and the outlays, including the cost of expert reports, will be charged. A client whose claim does not succeed may be ordered to pay the costs of the other side, and we explain that risk, and how it is managed, at the first meeting.
Common questions
Is there a time limit for a medical negligence claim in Ireland?
Yes. Two years from the date of the injury or from the date of knowledge if later, with the period for a child beginning at eighteen and the period in a fatal case running from the death. The court has no general power to extend it.
Do medical negligence claims go through the Injuries Resolution Board?
No. Claims arising from the provision of health services are excluded from the Board's remit, so proceedings issue in the courts once the expert evidence supports the claim.
What is the Dunne test?
The test for negligence in medical care laid down by the Supreme Court in Dunne v National Maternity Hospital. In short, a practitioner is negligent only where no practitioner of equal status and skill, acting with ordinary care, would have acted as they did, and following an approved practice is not negligence unless that practice has obvious defects.
Will my case go to court?
Proceedings must usually be issued to protect the time limit, but most claims are resolved by settlement or mediation. Where a claim does go to trial it is heard by a judge sitting alone in the High Court or the Circuit Court.